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Smrs Considered Lost By Va In Decisions


add55p
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Question

Does anyone have any solid information that would support a denial solely because service medical records word missing and repeatedly considered lost by VA.

The claim is now in the BVA appeals phase and I am thinking that there must be some precedent cases out there to support a Veterans claim when service treatment records are lost while in the possession of the Department of Veteran Affairs.

While the VA states that the SMRs are considered lost, there is documentation, in the form of a letter from the National Personnel Records Center (NPRC), in the claims file that clearly states that the Service treatment records were sent to the Department of Veterans Affairs.

The last SSOC stated the denied "because your service treatment records are unavailable".

Please provide any information that you may have to help put together a good letter for inclusion in the BVA appeal evidence based off of this situation..

Thank you..

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  • HadIt.com Elder

Even if you could prove that the VA lost the records, you would likely need to somehow reconstruct the information.

That aside, if the VA acknowledged the loss as their fault, you'd likely have to get a lawyer, and use some non VA federal law

to sue.

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Chuck75

Thanks for the information..

I cannot believe that there is no Veterans that have won there claim in the VA appellant process because of no service treatment records.

I understand that the SMRs are important to get you pass the first requirement (In service occurrence), however, there has to be another way to get pass this step requirement, minus service treatment records.

I am asking for someone that knows of any VA case law or Court precedent that may be used to strengthen the evidence to support the claim without SMRs during the BVA appeal process..

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You don't win just based on the fact that they lost the records, but you are supposed to get a heightened benefit of the doubt. The BVA is also supposed to discuss all evidence that is favorable to you.

How you would address the argument with the BVA would depend on what you think the records would have shown. Is there another way to show that?

As my husband's discharge physical was missing from his file, I included the following in my final argument to the BVA:

"Additionally, as the Regional Office was aware of the fact that my husband’s discharge physical has disappeared from his file (due to my repeated requests that they look for it), they had a heightened duty to consider the applicability of the benefit of the doubt, to assist in developing the claim, and to evaluate and discuss the evidence favorable to the claimant. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991)."

So I included it as one of the reasons we were appealing the previous decision.

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Add: Add can't help with any proven advice regarding your situation. This lost SMR evidence, there are no copies of it available anywhere? When I requested my complete USMC records from 68 & 69 I receive copies of, not originals. It's been since 2010 but I can't believe Military record originals would be given up by the controlling authority. When I finally got a copy of my C-File from my VARO after waiting 14 months, everything in it seemed to be copies of copies, at least to my semi-trained eye.

This may or may not be interesting. The 1st time I requested and received my USMC Military records in 2010, what I received seemed pretty complete. In 2011 I came across another link regarding "ALL" Military records and subsequently sent in another records request. The 2nd set of copies had everything that the 1st set had but also included all Boot Camp Test scores and copy of Nam Combat operations I participated in. Were these just missed the 1st time? I Report You Decide.

As to your missing SMR's, from my lay position, I can't see any way to decide in your favor without verification of what the SMR's contained. I think AskNod mentioned recently that it wasn't unusual for multiple copies of your C-File to exist when nearing the BVA Hearing. Check out his blog (AskNod.com) he's had considerable BVA experience and might be able to point you in the right direction. What does your VSO-Rep say?

Semper Fi

Gastone

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Gastone

Yes, VA had consistently stated that the SMRs were not available despite repeated request to retrieve them.

Hopefully someone can come up with a case of decision the can help with formulating some kind of evidence to help substantitate my appeal without the records..

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  • HadIt.com Elder

If you can find the records and they support your claim you can win. The VA has a duty to attempt to reconstruct lost records. I say "attempt" which means as little effort as possible by the VA. You know your records may not all be at St. Louis. Your medical records could still be at any hospital you were in during the military. You know many RVN Era vets did not even get discharge physicals. I did not get one. The Army invented one, however.

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